MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:
         DOCKET NUMBER:

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
M		Analyst

The following members, a quorum, were present:

Mr.		Chairperson
Mr.		Member
Mr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his military records be corrected to show that he was separated from the Army National Guard by reason of physical disability.

APPLICANT STATES: That he was not afforded proper medical board proceedings which would have resulted in a medical disability discharge. In support of the application, he submitted a 23 April 1997 memorandum signed for the Chief, National Guard Bureau (NGB).

EVIDENCE OF RECORD: The applicant's military records show:

A Statement of Medical Examination and Duty Status, DA Form 2173, shows that on 6 July 1983 the applicant, the applicant, a member of the ARNG in a
Title 32, United States Code, section 503 (non-Federalized) status, returned from a field exercise, dismounted a military vehicle at Camp Edwards, Massachusetts, and stumbled over a rock which caused him to suffer a fracture of the right ankle. He was admitted to a civilian hospital where he underwent surgical repair which included using a bolt for internal fixation. He was subsequently issued a physical profile serial (Physical Profile) with a numerical designator 3 in the L (lower extremities) factor and appropriate assignment limitations, and incapacitation pay for an extended period of time.

On 15 March 1985 he was honorably separated from the ARNG and as a Reserve of the Army. His ARNG separation document initially erroneously indicated that he was separated because of medically disqualifying heart condition (arteriosclerotic heart disease).

A 9 April 1985 document signed by the Chief, Army Comptroller Division, Headquarters, Departments of the Army and the Air Force National Guard Bureau, Washington, D.C., shows that payment of incapacitation pay was approved for the applicant for the period 23 May 1984 through 15 March 1985.

On 10 April 1987 his commander was directed by the Adjutant General of Massachusetts to order the applicant to "report to Cutler Army Community Hospital, For Devens, MA for a medical evaluation of his condition…A copy of the order revoking discharge is attached at enclosure." (A copy of the medical evaluation is not in the available records).

On 8 January 1988 the Adjutant General of Massachusetts offered the applicant the option of reenlisting in the ARNG in order to undergo disability processing but he declined to do so. He then applied to this Board requesting that he be reinstated for the purpose of undergoing disability processing; however, he was advised that based on his Title 32, United States Code, section 503 status at the time of the injury, the Board did not have jurisdiction in the case. An advisory opinion provided at the time by The Adjutant General, Massachusetts, recommended that the application be denied because "In summary, [the applicant] has been given the full benefits of medical care, full pay and allowances not only for his period of incapacitation but an additional
9 months pay due to administrative delay in finalizing his discharge. The administrative delay was primarily caused by [the applicant's] refusal to cooperate with both his military and federal technician superiors, insisting that he should be found unqualified for retention (despite the findings of a board which he insists he did not have but does have copies of in his own records. The one necessary correction to the records is the discharge order of 15 March
1985, where para 3-21a AR 40-501 should read paragraph 3-3b, AR 40-5-1."

A VA Rating Decision shows that he was awarded a 10 percent disability rating by that agency under VA Schedule for Rating Disabilities (VASRD) Code 5271, effective 6 November 1985, for residuals of a fracture of the right ankle; and that the rating for that condition was increased to 20 percent, effective
19 February 1991. He was denied service connection for arteriosclerotic heart disease and arthritis of the right leg.

On 24 December 1996, after the applicant had written to the President and a Member of Congress, he was notified by the Director of Personnel, Office of the Adjutant General of Massachusetts, that "Enclosed is the cover letter hand carried to NGB, accompanying your packet requesting final determination of your case. I believe this Headquarters has done everything in our power to advance your case for redress. If this request does not resolve itself in a satisfactory manner, I recommend you seek civilian counsel and take the case to federal course. While we hope your case is concluded to your satisfaction, the Massachusetts Army National Guard considers this matter closed."

The 23 April 1997 memorandum submitted by the applicant is signed for the Chief, National Guard Bureau (NGB) and is addressed to The Adjutant General, Massachusetts in response to the aforementioned packet submitted by the applicant. It indicates that at the time of his discharge, the applicant was not properly referred for disability processing; and that he should apply to this Board.

Legal rulings obtained by the Board over the years have established that the authority of the ABCMR over ARNG matters is limited to those actions which affect the Guardsman's status in the Reserve, which are primarily those actions taken while a Guardsman is performing duty under Title 10 United States Code. Basically, the Constitutional separation of powers prohibits the ABCMR from directing State Adjutants General from taking any type action. As such, if a correction of a military record would require a State Adjutant General to publish, revoke, or otherwise alter a document it has published on a Guardsman, the ABCMR cannot consider the application.

The VASRD shows that an individual rated under Code 5271 (limited motion of ankle) may be rated 20 percent (marked) or 10 percent (moderate). There are no other ratings.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. (Individuals separated under this provision are entitled to disability severance pay. The Department of Defense Military Pay and Allowances Manual, paragraph 40433, provides that disability severance pay will be computed by multiplying the sum of 2 months of basic pay times the number of years of active service).

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

Title 38, United States Code, section 1161 provides that "the deduction of disability severance pay from disability compensation as required by section 1212c of title 10, shall be made at a monthly rate not in excess of the rate of compensation to which the former member would be entitled based on the degree of such former member's disability."

Title 10, United States Code, section 1212c provides “The amount of disability severance pay received under this section shall be deducted from any compensation for the same disability to which the former member of the armed forces or his dependents become entitled under any law administered by the Department of Veterans Affairs.”

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1. The applicant injured his ankle on 6 July 1983 while serving as a member of the ARNG in a Title 32, United States Code, section 503 status and not in a Title 10 status. He received medical treatment for this injury and he was awarded incapacitation pay until the date of his separation 15 March 1985.

2. The applicant was awarded a 10 disability rating by the VA for residuals of his ankle injury, effective 6 November 1985, and continued to receive that amount of compensation until the amount was increased on 19 February 1991.
3. Presuming, for the sake of argument, that the applicant was serving in Title
10 (vice Title 32) status at the time of his injury and this Board had the authority to correct the applicant's records as is implied in the 23 April 1997 NGB memorandum submitted by the applicant, an appropriate correction would be to direct his separation with entitlement to disability severance pay based on the
10 percent disability rating determined by the VA at the time. However, such a correction would not benefit the applicant nor serve any useful purpose since the disability severance pay awarded to the applicant by the Army would then be deducted from his VA compensation accordance with law.

4. Again presuming, for the sake of argument, that the applicant was serving in a Title 10 status at the time of his injury, he cannot reasonably argue that he was entitled to disability retirement, vice disability separation, since retirement requires a 30 percent disability rating and the maximum allowable rating for his disabling condition under VASRD Code 5271 is 20 percent.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-08941/AR1998001301
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	108.04
2.	125.01
3.
4.
5.
6.